Application for costs by respondent – Costs in Criminal Cases Act 1967 – Costs in Criminal Cases Regulations 1987 – late withdrawal of criminal appeal – late disclosure by respondent – appellant’s false statement – Dog Control Act 1996
Pivott v Auckland Council  NZHC 1876.
An unsuccessful application for costs by Auckland Council, as respondent, under the Costs in Criminal Cases Act 1967 from Terrymoana Pivott.
Pivott appealed her conviction in the District Court under s 57(2) of the Dog Control Act 1996, but withdrew her appeal on the day of the hearing.
Pivott’s two dogs, OJ and MJ, attacked another dog and its owner on 21 September 2021. Pivott represented herself in the District Court and was convicted. Section 57(3) means it is almost mandatory that a dog will be destroyed, if it has not been already, when its owner is convicted under s 57(2), a strict liability offence.
Destruction is avoided only if the circumstances of the offence are exceptional, and do not warrant the destruction of the dog.
Pivott appealed her conviction and the destruction order on the grounds there was a total absence of fault and there were exceptional circumstances. In support of her appeal, she filed an affidavit deposing that a section of the fence enclosing her dogs had been removed by contractors on 20 September, the day before the attacks, without her knowledge. Her landlord filed an affidavit about the removal of the fencing. Pivott filed her affidavit and submissions two weeks before the council filed its submissions and approximately four weeks before the hearing date.
The appeal hearing was set down for 19 June 2023. On 18 June, counsel for the council read a property inspection report stating the section of fence had been removed at least 10 days before the dog attacks. This information was disclosed to Pivott on the 18 June. She obtained legal advice and withdrew her appeal the next day.
Council applied for costs on the grounds that Pivott withdrew her appeal at a late stage, there was no basis for the appeal, and it was not brought in good faith.
Applicable principles: Costs awarded at court’s discretion – whether circumstances warrant exercise of court discretion – s 9 applies – whether s5(2) applies – whether s 5(2) purpose is relevant – whether respondent’s actions faultless – whether respondent contributed to late withdrawal – whether s 13(3) criteria met – whether case is especially difficult, complex or important – different criteria for respondent and defendant cost awards.
Held: Council’s application for costs is declined.
Circumstances relating to the withdrawal of the appeal were relevant. The council’s disclosure to Pivott on 18 June was late. It was not accepted the report was relevant only because of Pivott’s affidavit. It was relevant to the District Court proceedings. Pivott abandoned the appeal after receiving legal advice. Further, the council’s reasons for costs in excess of the scale did not satisfy the s 13(3) criteria and “there was no special difficulty, complexity or importance in this case”. Section 5(2) applied to defendants seeking costs, not to respondents.
After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law